UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES v. VALERIEMARIE MOORE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

THE UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Appellant,

v.

VALERIEMARIE MOORE,

Appellee.

No. 2D21-2685

September 30, 2022

BY ORDER OF THE COURT:

Appellant's motion for rehearing, rehearing en banc, or

certification is denied. The panel on its own motion grants

rehearing, withdraws the opinion dated June 1, 2022, and

substitutes the attached opinion. No further motions for rehearing

will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE

ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL

CLERK

-2-

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

THE UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Appellant,

v.

VALERIEMARIE MOORE,

Appellee.

No. 2D21-2685

September 30, 2022

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for

Hillsborough County; Darren D. Farfante, Judge.

Richard C. McCrea, Jr., and Cayla M. Page of Greenberg Traurig,

P.A., Tampa, for Appellant.

Adam A. Schwartzbaum, Adam Moskowitz, Howard M. Bushman,

and Barbara C. Lewis of The Moskowitz Law Firm, PLLC, Coral

Gables, for Appellee.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami; and Robert J.

Sniffen and Jeffrey D. Slanker of Sniffen & Spellman, P.A.,

Tallahassee, for Amicus Curiae Florida Defense Lawyers

Association.

Janet R. Varnell of Varnell & Warwick, P.A., Tampa, for Amicus

Curiae The National Association of Consumer Advocates.

CASANUEVA, Judge.

The University of South Florida Board of Trustees (USF)

appeals a trial court order denying its motion to dismiss in which it

asserted the defense of sovereign immunity. ValerieMarie Moore

filed the underlying class action complaint against USF alleging

claims for breach of contract and unjust enrichment based on the

collection of student fees for on-campus services that were not

offered due to COVID-19. The order at issue granted USF's motion

to dismiss Ms. Moore's breach of contract claim for the limited

purpose of allowing Ms. Moore to attach her registration agreement

to her amended complaint, but it otherwise denied USF's motion to

dismiss on the merits of its sovereign immunity defense. The order

also dismissed Ms. Moore's unjust enrichment claim without

prejudice to her ability to add allegations to support her claim. The

issue raised in this appeal is whether the trial court erred in

denying USF's motion to dismiss the breach of contract claim based

on sovereign immunity. We affirm the trial court's refusal to

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dismiss the claim at this stage of the proceeding, but our holding is

without prejudice to USF's right to again raise the defense of

sovereign immunity if supported by the facts.

I. Standard of Review

Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii) gives

district courts in this state jurisdiction to hear appeals involving

nonfinal orders that deny motions asserting entitlement to

sovereign immunity. "[B]ased on the plain and unambiguous

language of the amended rule, our jurisdictional inquiry now

focuses not on the challenged order, but rather on the motion that

the order adjudicates." City of Sweetwater v. Pichardo, 314 So. 3d

540, 542 (Fla. 3d DCA 2020).

"Article X, section 13 of the Florida Constitution provides

absolute sovereign immunity for the state and its agencies absent

waiver by legislative enactment or constitutional amendment." Lee

Mem'l Health Sys. v. Hilderbrand, 304 So. 3d 58, 60-61 (Fla. 2d

DCA 2020) (quoting Ingraham ex rel. Ingraham v. Dade Cnty. Sch.

Bd., 450 So. 2d 847, 848 (Fla. 1984)). "The issue of a party's

entitlement to sovereign immunity is a legal issue subject to the de

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novo standard of review." Id. at 60 (citing Plancher v. UCF Athletics

Ass'n, 175 So. 3d 724, 725 n.3 (Fla. 2015)).

However, when ruling on a motion to dismiss based on

sovereign immunity, courts are required to treat as true the

complaint's allegations, "including those that incorporate

attachments, and to look no further than the amended complaint

and its attachments." City of Gainesville v. Dep't of Transp., 778 So.

2d 519, 522 (Fla. 1st DCA 2001) (first citing Brewer v. Clerk of the

Circuit Court, 720 So. 2d 602, 603 (Fla. 1st DCA 1998); then citing

Sarkis v. Pafford Oil Co., 697 So. 2d 524, 526 (Fla. 1st DCA 1997);

and then citing Varnes v. Dawkins, 624 So. 2d 349, 350 (Fla. 1st

DCA 1993)). "A motion to dismiss is not a substitute for a motion

for summary judgment, and in ruling on a motion to dismiss a

complaint the trial court is confined to consideration of the

allegations found within the four corners of the complaint." Hurley

v. Lifsey, 310 So. 3d 1030, 1032-33 (Fla. 2d DCA 2020) (quoting

Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA

1998)). Consequently, at this stage of the pleadings, the trial court

was required to treat as true the complaint's allegations as well as

attachments to the complaint.

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II. Circuit Court Pleadings

Ms. Moore filed a class action complaint alleging that during

all semesters in 2020 and the Spring 2021 semester, USF collected

fees for on-campus services that were not offered due to COVID-19.

She alleged, "USF has improperly retained funds for services it did

not provide, in violation of its express contracts with students

which allow it to collect fees only for certain statutorily specified

purposes."

In its motion to dismiss, USF argued that the breach of

contract claim is barred by the doctrine of sovereign immunity. It

alleged that the complaint's assertion that Ms. Moore entered into

an express written contract with USF is a legal conclusion, which is

insufficient to establish a cause of action for breach of contract.

USF argued that two account statements attached to the complaint

were not student invoices, and it argued that even if an invoice were

attached, it would at most constitute a claim for breach of an

implied contract.

At the hearing on the motion to dismiss, USF argued that it

only waives sovereign immunity when it enters into an express,

written contract, and if there is a contract in this case, it is an

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implied contract. Florida Defense Lawyers Association filed an

amicus brief in support of USF. The National Association of

Consumer Advocates filed an amicus brief in support of Ms. Moore.

III. Analysis

When the state enters into a contract authorized by general

law, the defense of sovereign immunity will not shield it from

litigation.

In section 768.28, Florida Statutes (1981), the

legislature has explicitly waived sovereign immunity in

tort. There is no analogous waiver in contract.

Nonetheless, the legislature has, by general law, explicitly

empowered various state agencies to enter into contracts.

See e.g., §§ 23.017, 153.62(11), 163.370, 230.22(4),

337.19(1), Fla. Stat. (1981). Additionally, it has

authorized certain goals and activities which can only be

achieved if state agencies have the power to contract for

necessary goods and services. See e.g., §§ 20.315,

945.215, Fla. Stat. (1981).

It is basic hornbook law that a contract which is not

mutually enforceable is an illusory contract. Howard

Cole & Co. v. Williams, 157 Fla. 851, 27 So. 2d 352

(1946). Where one party retains to itself the option of

fulfilling or declining to fulfill its obligations under the

contract, there is no valid contract and neither side may

be bound. Miami Coca-Cola Bottling Co. v. Orange-Crush

Co., 291 F. 102 (D. Fla. 1923), affirmed, 296 F. 693 (5th

Cir. 1924).

Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984).

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When the legislature has authorized a state entity to enter into

a contract, it clearly intends that the contract be valid and binding

on both parties. Dep't of Transp. v. United Cap. Funding Corp., 219

So. 3d 126, 134 (Fla. 2d DCA 2017) ("[T]he government's obligations

under the terms of an express written contract it was authorized by

law to enter are subject to the same standards of contract

performance and enforcement that would apply to a private party.").

Therefore, "where the state has entered into a contract fairly

authorized by the powers granted by general law, the defense of

sovereign immunity will not protect the state from action arising

from the state's breach of that contract." Pan-Am Tobacco Corp.,

471 So. 2d at 5; see also United Cap. Funding Corp., 219 So. 3d at

135 ("[W]here the government has entered into an express written

contract that it is statutorily authorized to enter, sovereign

immunity cannot protect it from the same contract rules that

govern the performance of the express written contract obligations

of a private party to a contract.").

In the present case, the complaint alleged that there was an

express written agreement. Ms. Moore's registration agreement was

not provided to her prior to filing the complaint, but when she

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received it, she filed it as an attachment in support of her

opposition to the motion to dismiss.1 After the hearing on the

motion to dismiss, the trial court granted USF's motion to dismiss

Ms. Moore's breach of contract claim for the limited purpose of

allowing Ms. Moore to attach the registration agreement to her

amended complaint.

The registration agreement states, "By clicking 'Submit

Changes' below, I am entering a legal, binding contract with USF and

I hereby acknowledge that I have read and understand the terms

and conditions of this registration agreement." (Emphasis added.)

Based on the clear language of the registration agreement, Ms.

Moore entered into a legal, binding contract with USF.

USF argued at the hearing on its motion to dismiss that, even

assuming the registration agreement is an express written contract,

it does not set forth a promise by USF to provide any specific

services in exchange for student fees. Therefore, it contends, Ms.

Moore cannot establish that USF breached a provision of the

1 At the hearing, counsel for USF stated, "I am amenable to the

Court's consideration of this document as if it was originally

attached to the complaint."

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contract. We conclude that the trial court correctly rejected this

argument at this stage of the pleadings.

First, we note that this argument was not raised in USF's

motion to dismiss. See City of Sweetwater, 314 So. 3d at 542

(holding that our jurisdictional inquiry focuses on the motion to

dismiss based on sovereign immunity, not on the challenged order).

Further, a determination regarding whether the parties' "legal,

binding contract" included a promise to provide on-campus services

in exchange for fees is more appropriate at the summary judgment

stage. Although Ms. Moore has sufficiently pleaded the existence of

a contract, this is not necessarily "a typical contract situation where

there is an express document with delineated terms that a plaintiff

can reference." Gibson v. Lynn Univ., Inc., 504 F. Supp. 3d 1335,

1340 (S.D. Fla. 2020) (quoting Salerno v. Fla. S. Coll., 488 F. Supp.

3d 1211, 1218 (M.D. Fla. 2020)). As noted above, the registration

agreement states, "By clicking 'Submit Changes' below, I am

entering a legal, binding contract with USF and I hereby

acknowledge that I have read and understand the terms and

conditions of this registration agreement." The agreement further

states that Ms. Moore is responsible for knowing all registration

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policies. Therefore, the "terms and conditions" of the registration

agreement along with any associated registration policies must be

examined to determine whether they contain a promise by USF to

provide any specific services in exchange for the fees it charged

students. Additionally, Ms. Moore agreed to "USF policies" when

she clicked "Submit Changes" on the website and, therefore, USF

policies must be examined to determine if USF promised to provide

any specific services in exchange for student fees.2

Although USF argues in its brief that the "Registration

Agreement and the USF policies make no promises to Moore

regarding any specific services in return for her payment of student

fees," USF's policies are not included in USF's appendix and the

transcript does not reflect that the policies were provided to the trial

court.

In Zainulabeddin v. University of South Florida Board of

Trustees, No. 8:16-cv-637-T-30TGW, 2016 WL 1451726 (M.D. Fla.

Apr. 13, 2016), the court denied USF's motion to dismiss based on

2 Ms. Moore was also required to agree to pay the attorney's

fees of USF in the event she defaulted on her payment.

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sovereign immunity where USF argued that the student could not

identify a valid written contract, but only a student handbook,

which generally does not, standing alone, constitute a written

contract. The court held that at this stage of the proceeding, the

plaintiff was not required to identify a written contract, but instead

was merely required to allege one. Id.; cf. Rhodes v. Embry-Riddle

Aeronautical Univ., Inc., 513 F. Supp. 3d 1350, 1357 (M.D. Fla.

2021) (noting in breach of contract action against a private

university, courts have recognized "the proposition that a student

handbook or publication can create contractual obligations on the

part of [the] university that are not necessarily limited to the

'service' of providing a college degree." Id. (alteration in original)

(quoting Orzechowitz v. Nova Se. Univ., No. 13–62217–CIV, 2014 WL

1329890, at *3 (S.D. Fla. 2014))).

"[T]o prevail on a claim of breach of contract, a party

must establish (1) a valid contract between the parties;

(2) an obligation or duty arising out of the contract; (3) a

breach of that duty; and (4) damages caused by breach."

Mawakana v. Bd. of Trs. of Univ. of D.C., 926 F.3d 859,

869 (D.C. Cir. 2019) (quoting Tsintolas Realty Co. v.

Mendez, 984 A.2d 181, 187 (D.C. 2009)).

...

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"[T]he relationship between a university and its

students is contractual in nature." Basch v. George

Washington Univ., 370 A.2d 1364, 1366 (D.C. 1977) (per

curiam). "[T]he terms set down in a university's bulletin

become a part of that contract," but "the mere fact that

the bulletin contain[s] language" on a topic "is not

enough to support a finding that the language amounted

to a contractual obligation." Id. at 1366-67 (citations

omitted). "Whether a given section of the bulletin also

becomes part of the contractual obligations between the

students and the university . . . depend[s] upon general

principles of contract construction." Id. at 1367. Other

university publications can also constitute a part of the

contract between a university and its students. See, e.g.,

Pride v. Howard Univ., 384 A.2d 31, 34 (D.C. 1978)

(accepting parties' assumption that the Code of Conduct

printed in the student manual constituted a part of the

contract between the university and its students).

In cases "raising the construction of a student-

university contract," " 'the document itself must be

viewed as a whole' and 'the court should view the

language of the document as would a reasonable person

in the position of the parties.' " Id. (quoting Basch, 370

A.2d at 1367).

Shaffer v. George Washington Univ., 27 F.4th 754, 762-63 (D.C. Cir.

2022) (alterations in original).3

IV. Conclusion

3 In Shaffer, the court noted that there must be "language

indicating that the provision of in-person education and on-campus

services was an explicit term of the parties' agreements." 27 F.4th

at 763.

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We affirm the trial court order denying USF's motion to

dismiss based on the defense of sovereign immunity without

prejudice to USF's right to assert the defense in a motion for

summary judgment.

Affirmed.

VILLANTI and LABRIT, JJ., Concur.

Opinion subject to revision prior to official publication.

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